HKSAR v. GADARA JASPAL SINGH AND ANOTHER

DCCC 176/2020 & DCCC 335/2020 (Consolidated)

[2020] HKDC 964

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 176 AND 335 OF 2020 (CONSOLIDATED)

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.  D1 pleaded guilty to four charges of burglary and D2 pleaded guilty to one charge of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap. 210.

Admitted Facts

Offence 1

2.  The victimized company was a restaurant known as “Tim Ho Wan” located at Ground Floor, Nos. 9-11 Fuk Wing Street, Sham Shui Po, Kowloon (“the Restaurant”).

3.  At about 10:00 p.m. on 6 November 2019, the technician of the Restaurant, Mr. YEUNG Chi-cheung (“PW1”) was working at the rear entrance of the Restaurant. At about 11:30 p.m., PW1 saw D1, who acted furtively at the rear entrance of the Restaurant. PW1 intercepted D1 and made inquiries on him. D1 answered that he was doing cleaning work at the Restaurant. When PW1 made further inquiries, D1 suddenly fled and ran to the direction of Wong Chuk Street. While D1 was escaping, he discarded a red bag (“the Bag”) on the ground at the rear lane outside the Restaurant.

4.  PW1 kept pursuing D1 until they reached Wong Chuk Street. D1 got on a taxi and PW1 immediately intercepted it. D1 begged PW1 to release him and PW1 eventually agreed to do so.

5.  At about 11:35 p.m., PW1 returned to the rear lane outside the Restaurant and inspected the Bag. He discovered some plastic boxes, glasses and some paper, which were initially stored in the Restaurant inside the Bag. When he returned to the Restaurant, he discovered an iron pole, a pair of pliers and a backpack (“the Backpack”) which did not belong to the Restaurant inside the premises. Signs of ransacking were noticed in the Restaurant and the computers at the cashier counter were damaged. The Restaurant suffered a loss of HKD 10,000 for the damaged computers.

6.  Inside the Backpack, a Macau arrival slip in the name of D1 was found. CCTV inside the Restaurant captured that D1 ransacked the cashier counter of the Restaurant.

Offence 2

7.  The victimized company was a flower shop located at Ground Floor, Yuk Chuen Building, No.237 Yu Chau Street, Sham Shui Po, Kowloon (“the Flower Shop”).

8.  At the material time, the Flower Shop was under renovation. At 4:30 p.m. on 6 November 2019, Mr. CHOW Chi-sum (“PW2”), the person in charge of the renovation work, left the Flower Shop after securing the combination lock and iron chain of the wooden boards erected at the entrance of the Flower Shop. He confirmed that all the equipment inside the Flower Shop was properly stored before he left the premises.

9.  At about 8:30 a.m. on 7 November 2019, PW2 returned to the Flower Shop. He noticed that the iron chain securing the entrance of the shop was cut open and several equipment, including one trolley, two polish machines, one electric beaker, one hydraulic drill, one tile cutter, two electric screwdrivers and two bundles of cooper pipes were missing.

10.  PW2 suffered a total loss of HKD 6,180.

11.  CCTV nearby captured that D1 pushed a trolley at 4:33 a.m. on 7 November 2019 at the pavement opposite the Flower Shop. D1 was wearing the same T-shirt as shown in the CCTV footage of Offence 1.

Offence 3

12.  The victimized shop was a garment accessories company known as Tai Hing Button Products Co Ltd, located at Ground Floor, Shop Nos. B1-2, Nos. 50-52 Fuk Wa Street, Sham Shui Po, Kowloon (“the Garment Accessories Shop”).

13.  At about 6:00 p.m. on 7 November 2019, the staff of the Garment Accessories Shop, Ms. SO Lai-fun (“PW3”) confirmed that cash of HKD 1,000 was properly secured in the cash register. PW3 left the premises after shutting the roller shutter and locking its switch with a padlock.

14.  At about 8:00 a.m. on 8 November 2019, PW3 returned to the Garment Accessories Shop. She noticed that the roller shutter was left ajar; the switch box was prized open; and the padlock was missing. Inspection inside the Garment Accessories Shop revealed signs of ransacking and the loss of the Cash Register with the cash of HKD 1,000 inside.

15.  CCTV nearby captured one male tampering with the switch box and another male removing a bag from the Garment Accessories Shop between 4:13 a.m. and 4:26 a.m. on 8 November 2019.

16.  At about 5:17 p.m. on 8 November 2019, DPC 19758 located D1 at the junction of Nam Cheong Street and Tai Nan Street, Sham Shui Po, Kowloon. Shortly afterwards, D1 was arrested for Burglary.

17.  At the material times, D1 entered Garment Accessories Shop with another person unknown as trespassers and stole things therein.

18.  In the three subsequent cautioned VRIs conducted between 8 and 9 November 2019, D1 admitted offences 1 – 2. 

Offence 4

19.  The offence location was a subdivided unit situated at G/F 9B Wing You Street, Hung Horn, Hong Kong. Room A of the subdivided unit is the residence of Ms LAU Suet-mei (“PW7”), while Room B of the subdivided unit (“ROOM B”) is an air conditioner and refrigerator maintenance store owned by Mr. CHEUNG Kwok-chung (“PW8”).

20.  On 20 November 2019 at around 3:35 a.m., PW7 heard some sound from ROOM B, she then looked out from the window at the mezzanine and saw a culprit wearing black outfit with a cap walking out from ROOM B, while another culprit, who were also wearing a cap, knelt at the door of ROOM B and seemed to be packing up. Feeling suspicious, PW7 reported the case.

21.  A police party attended the scene at 4:00 a.m. on the same day. When they arrived at the scene, D1 who was wearing black jacket, black trousers and a black sneakers walking out from ROOM B and left via the rear lane of Wing You Street towards Sheung Heung Road.  Police then gave chase and intercepted D1 at the rear lane of 9-11 Sheung Heung Road. 

22.  D2 was wearing black long-sleeved shirt, black trousers, black sneakers, black cap, and carrying a black cross-body bag at Wing You Street near the rear lane of Sheung Heung Road. D2 was later intercepted. During the enquiry, D2 claimed that he was a Form 8 holder.  D1 and D2 were subsequently arrested.

23.  There were prized marks on the door of ROOM B with signs of ransacking in ROOM B. A black and yellow backpack containing a few rolls of electric wire was also found lying on the floor at ROOM B’s door.

24.  PW8 later confirmed that four hydraulic drills (“S/pptyl”), three grinding machines (“S/ppty2”), seven rolls of electric wire (“S/ppty3”) and one bundle of copper wire (“S/ppty4”) were missing.

25.  Mr. TSANG Kam-suen, employee of the victimized company, later discovered two bags containing S/ppty1-4 were lying on the driveway near 9-11 Ha Heung Road, and subsequently retrieved S/ppty1-4.

26.  CCTV footages capturing the vicinity of ROOM B at the material time was obtained and revealed that on 20 November 2019. D1 and D2 were seen walking towards ROOM B and walking out from ROOM B carrying bags.

27.  At all material times, D1 and D2 entered ROOM B as trespassers and stole things therein.

Criminal Records

28.  D1 has twelve convictions from seven records.  He was last convicted on 25^th January 2018 for two charges of burglary, his only burglary conviction record.  He was sentenced to a total of 30 months’ imprisonment. 

29.  D2 has two conviction records, including one conviction record of “Theft (Shoplifting)”.  He was last convicted on 1 December 2017 for a charge of “Dealing with goods to which Dutiable Commodities Ordinance Applies”, and was sentenced to 6 months’ imprisonment. 

Mitigation

D1

30.  D1 is 35 years old, born on 7 June 1985.  Born in India, he arrived in Hong Kong in 1996.  He is a Hong Kong permanent resident.  His parents are residing in India, his brothers in Hong Kong.  He is a father of a 3 ½-year-old girl, who is living in the Philippines.

31.  He is educated up to primary school in Hong Kong (California Primary School).  He is a maintenance worker (casual employment), earning approximately $11,000 monthly

32.  He is suffering from bad vascular vein problems in his right leg.

33.  Upon his release from prison, D1 undertook employment loading and unloading containers. This was in 2019. Then as a result of the 2019 civil disturbance which was followed by the Coronavirus problems, D1 lost his job. Due to the reasons outlined and his health problems, D1 was unable to find fresh employment. As his daughter was in need of financial support, in desperation, D1 committed the offences.

34.  It is to be noted that the burglaries in respect of all four counts occurred in commercial (non-domestic) premises which normally attracts a starting point of 2 years 6 months’ imprisonment, when there are no aggravating factors.

35.  The Defendant made a formal offer to be a prosecution witness in respect of the consolidated cases of DCCC 674/2019 & DCCC 253/2020.

D2

36.  D2 is 33 years old. He came to Hong Kong from Pakistan in 2011. His wife, son (aged 11) and daughter (aged 9) all reside in Pakistan. D2 is unemployed although in Pakistan D2 used to work as a chef. He has previous convictions, in respect of shop theft and dealing with dutiable goods, the first of which is fairly minor and the second of which is not similar to the present case. He has no previous convictions in respect of burglary.

37.  The Offence location is a commercial property, a sub-divided unit, which was used as an air conditioner and refrigerator maintenance store. The Offence was committed in the early hours of the morning at such a time when the premises were, as one might expect, vacant. The officers who attended the scene noticed that the door to the premises had been prized, presumably in order to gain entry, and that there were signs of ransacking. Other than this there was no damage observed. The stolen property, consisting of various power tools and wires, was all recovered when one of the employees of the victim attended the scene and found bags containing the stolen property in the street nearby. The victim confirmed that the stolen property was worth around HK$4,500 in total and that all stolen property was recovered.

Sentence

38.  The Court of Appeal had set down clear guidelines in sentencing cases of burglary.  For burglary of commercial premises, the appropriate starting point should be 2.5 years’ imprisonment: R v Wong Man[1].

39.  In HKSAR v Cheng Wai Kai[2], Yeung JA set out the following aggravating features:-

“The starting point can be adjusted upwards if there are aggravating circumstances such as (1) the offence is carefully planned and skillfully executed involving the use of heavy instruments or equipment; (2) the offence is committed by two or more people; (3) the offence targets at substantial premises and involves substantial properties; (4) the offender is a professional burglar and not just an opportunist; (5) the offender has previous convictions, particularly previous convictions of a similar nature, and (6) the offender commits multiple offences”

40.  In HKSAR v Junaid Ahmed [2018] HKCA 159, [2018] HKCU 939, the Court of Appeal considered that an accused being a mandated refugee is an aggravating factor; starting point enhanced from 30 to 33 months’ imprisonment. Where, at para. 21 the court held:

“We are satisfied that the judge was entitled to treat the appellant’s immigration status as an aggravating factor and enhance the starting point on the burglary charge by three months. The offence committed by the appellant is certainly a serious one that would affect the community at large and tarnish the reputation of Hong Kong as an orderly and safe city.”

D1

41.  D1 is convicted to a total of four counts of burglary, I consider there are following aggravating features in these offences: -

i)  D1 is a professional burglar and not just an opportunist, as multiple shops were targeted within one month.

ii)  D1 has two previous burglary convictions record. He committed another burglary offence on 28 May 2019, 4 months before present offences.

iii)  Charge 3 and 4 were committed by two people.

42.  Therefore, for each offence, I am of the view the starting point for each offence should be:

i)  Charge 1: 36 months

ii)  Charge 2: 36 months

iii)  Charge 3: 37.5 months

iv)  Charge 4: 37.5 months

43.  D1 pleaded guilty at the first opportunity and is entitled to ⅓ discount. 

44.  D1 gave evidence against a defendant in DCCC 674/2019 & 253/2020 (Consolidated).  In considering whether to give any further discount to D1 for his assistance, I have considered Z v HKSAR[3]. The policy of the courts to recognize useful assistance to the authority in mitigation sentence is based on the public interest.  A number of factors should be taken into account, as outlined in paragraph 13 of the judgement. 

45.  In HKSAR v W[4], Stock VP noted in paragraph 8:

“It has for long been the approach in this jurisdiction not to accord credit for information which in the event bears no fruit”. He further noted in para　11　“where information provided in fact leads nowhere, the system opens itself to abuse if credit is given merely for the provision of detailed and specific information which in the event bears no fruit. And "fruit" in such a case is not produced by mere identification without the assistance of the accused in actually securing, directly or indirectly, the prosecution and conviction of the person concerned.”

46.  D1 gave assistance to authority and evidence against a defendant in another proceeding.  Mr. Donald, on behalf of D1, urged the court to give him some discount despite the fact that his assistance did not return a conviction.  The policy for discount, as stated earlier, relates to useful assistance which bears “fruit”.  However, the court rejected D1’s evidence and that defendant was acquitted.   It is because D1 gave different versions of the same event to police and to the court.  I do not find he gave truthful and reliable information.  I am of the view D1 is not entitled to further discount.

47.  Therefore, having given D1’s full credit for his plea of guilty, I reduce his sentences to the following:

i)  Charge 1: 24 months

ii)  Charge 2: 24 months

iii)  Charge 3: 25 months

iv)  Charge 4: 25 months

48.  I find no other mitigating factor for me to reduce the sentence.  His financial hardship and inability to find employment are not reasons for me to reduce sentence. 

Totality

D1

49.  Where offences are committed in different premises against different victims on different dates, consecutive sentences should be imposed, subject to the totality principle.  A wholly consecutive sentence would be out of proportion to the overall culpability of the defendant. 

50.  D1, as a repeated offender, committed the four offences over a period of fourteen days.  Considering the scale of the offences, I consider that a total sentence of 33-month imprisonment term adequately reflects the overall criminality of the four offences. 

51.  The defendant is therefore sentenced as follows:

i)  Charge 1 – 24 months’ imprisonment;

ii)  Charge 2 – 24 months’ imprisonment with 3 months’ consecutive to Charge 1;

iii)  Charge 3 – 25 months’ imprisonment with 3 months consecutive to Charges 1 and 2 and

iv)  Charge 4 – 25 months’ imprisonment with 3 months consecutive to Charges 1 – 3;

52.  The total sentence in the present proceedings to be served by D1 is 33 months’ imprisonment.

53.  D1 is also sentenced to 22-month imprisonment term in DCCC 674/2019 & 253/2020 (Consolidated) for one charge of burglary.  That burglary is not related to the present charges.  However, a wholly consecutive sentence would be out of proportion to the overall culpability of the defendant.  Considering the totality principle and the scale of the burglaries, I will order that 3 months of his sentence in DCCC 674/2019 & 253/2020 (Consolidated) to run consecutively to the sentences in the present case.  Therefore, D1 will serve a total sentence of 36 months’ immediate imprisonment.

D2

54.  D2 has no similar record.  He pleaded guilty to one count of burglary.  The offence was committed by more than one person.  From the antecedents statement, D2 is a recognizance holder. I consider these are aggravating factors.  I will adopt a starting point of 33 months.  D2 pleaded guilty at the first instance and is entitled to ⅓ discount.   There is no other reason for me to further reduce his sentence. Therefore, D2 is sentenced to a 22-month imprisonment.